Judicial Power and Judicial Independence

Does Political Criticism Of Judges Damage Judicial Independence?

In a new paper for Policy Exchange’s Judicial Power Project the Honourable Dyson Heydon AC QC, former Justice of the High Court of Australia, asks Does Political Criticism of Judges Damage Judicial Independence? In the paper, Mr Heydon challenges the conventional...

Enclaves and Exclaves: Limits and exceptions to the doctrine of judicial review

The Honourable Dyson Heydon AC QC, former Justice of the High Court of Australia and one of the common-law world’s foremost figures, warns that the phenomenon of rising judicial power across much of the common law world represented a “silent revolution” that had occurred largely without parliamentary sanction.

Judicial Power and the Balance of Our Constitution

John Finnis | Judicial Power: Past, Present and Future

Introduction As we came into the Inn and crossed its South Square to reach the Benchers’ Entrance, we all passed the statue of Francis Bacon, truly outstanding among this country’s scholars and lawyers. One of the most well-known of his Essays is on Judicature, or as...

Justice Brown | Comment

Professor Finnis’ paper Judicial Power: Past, Present and Future describes developments in the United Kingdom which have led to what he sees as a legal quagmire, and advocates a push back towards judicial deference to legislative policy preferences, based upon respect...

Sir Patrick Elias QC | Comment

What is the proper function of the judge? And what, in a democratic society, are the proper boundaries between the judicial, executive and legislative arms of the state? This is a perennial debate about which opinions differ. Professor Finnis, in a characteristically...

Justice Glazebrook | Comment: Mired in the past or making the future?

One of Professor Finnis’ major themes is that the courts are concerned with the past, while Parliament looks to the future and the Executive attends to the present. I agree with Professor Finnis that the primary role of the courts, including final courts of appeal, is...

John Dyson Heydon AC QC | Comment

John Finnis has made many trenchant points in Judicial Power: Past, Present and Future. The following seeks to highlight what can flow from two of them. One is the danger arising from what he calls “inequality of arms”. This takes place, he argues, where the...

Baroness O’Neill of Bengarve | Comment: Varieties of Judgement

Past, Present and Future John Finnis contrasts the temporal perspectives of legislatures, executives, and the judiciaries. As he sees it, legislatures look forward as they seek to work out how a framework of law might be improved; executives address current...

John Finnis | Rejoinder

The foregoing responses — one by a scholar-participant in the deliberations of the Upper House of Britain’s Parliament, and four by distinguished judges in the common-law constitutional tradition — all share the Lecture’s aim: to evoke that tradition (initially in its...

John Finnis | Appendix: “Guardians of the Constitution”

Here are the main uses of “guardian(s) of the Constitution” in UK-related courts. I asterisk sentences that seem to me fallacious. 1 In Akar v AG Sierra Leone [1970] AC 853 at 872, Lord Guest, dissenting, said: Although the courts are the guardians of the...

John Finnis | Brexit and the Balance of our Constitution

The Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales have ruled that the Crown’s prerogative of conducting international relations and making and unmaking treaties does not authorise our Government to notify the European Council, pursuant to Art. 50...

John Finnis | Postscript

Brief observations on the final Miller judgment[1] My first thought about Miller[2]: We are leaving the EU just in time; our Supreme Court is going native — reading statutes like courts in European jurisdictions characteristically do, subordinating deliberate wording...

Judicial Power and the Left

Sir Patrick Elias | Judicial scepticism from the left: some thoughts

Judicial Power and the Left: Notes on a Sceptical Tradition is a stimulating and provocative selection of essays. It is part of Policy Exchange’s timely Judicial Power Project which focuses on the role of judges within the constitution. The voices in this collection...

Phil Syrpis | ‘Judicial Power and the Left’ – A short response

I have spent the last days reflecting on an excellent collection of short essays ‘Judicial Power and the Left’. The essays examine the relationship of the Left with the judiciary, and are best seen as a reaction against the Left’s (and here I quote from Jon Cruddas...

Simon Lee | Judicial Power: What is Left Unsaid?

The Judicial Power Project is on to something with its collection of a dozen essays, entitled Judicial Power and the Left published earlier this year. It is just that the something is not, in my opinion, a deepening of our understanding of judicial power or, at least,...

Jon Cruddas MP | Foreword to Judicial Power and the Left

The retreat towards the law and the continental constitutional separation of powers, and away from democracy and parliamentary sovereignty, have been very powerful tendencies within the left over the past fifty years. This collection of essays exposes this political...

Carol Harlow | Judicial Power, the Left, and the LSE Tradition

Carol Harlow sets the scene by reflecting on the working classes’ experiences of the criminal courts and civil courts, noting in particular how suspicion of the judiciary was rooted in the judges’ development of the common law in ways supportive of capital and hostile to trade unions.

Chris Bickerton | The Left’s Journey from Politics to Law

The left’s conversion to judicial power is a complex phenomenon with multiple causes, and Chris Bickerton begins by pointing to some of the intellectual and political background to the left’s changed attitudes to law and courts.

Human Rights

Guglielmo Verdirame | Which theory? Whose bill of rights?

The Human Rights Act (HRA) has been a centrepiece of the British Constitution for almost twenty years. The idea that, over 300 years after the 1688 Bill of Rights, Britain should have a new bill of rights was laudable. But its implementation was a failure of legal and...

John Finnis | Judicial Usurpation and Human Rights

Human Rights and Political Wrongs gives us an unrivalled explanatory checklist of the ways in which the European Court of Human Rights (and so any court that takes its cue from the ECtHR) has expanded the power of judges to declare that laws adopted in a civilized,...

Lord Phillips | Strasbourg Overreach and ECHR Membership

In this book Sir Noel Malcolm advances three propositions. The first is that there is no moral or philosophical basis for human rights; they are essentially political. The second is that the jurisprudence of the Strasbourg Court has been unsatisfactory. The third is...

Baroness O’Neill | The Importance of Justifying Rights

Noel Malcolm is surely right both that human rights standards are important, and that accounts of human rights are currently in some trouble. I think that he is also right that some of these troubles have been brought about not by those who are hostile to or who...

Human Rights and Political Wrongs: A new approach to Human Rights law

In a major new study for Policy Exchange, Sir Noel Malcolm, leading historian of ideas and Senior Adviser on Human Rights to Policy Exchange, argues that democracy is being eroded by an ever-expanding system of human rights law and condemns the encroachment of the European Court of Human Rights on democratically-elected parliaments. Sir Noel reaches the conclusion that the best way to protect human rights and align this protection with democratically accountable government is for the UK to leave the jurisdiction of the Court. He appeared on the Today programme to debate the issue with Baroness Kennedy of the Shaws QC.

Critiquing Judicial Power

John Finnis: Brexit and the Balance of Our Constitution

Following on from his three Judicial Power Project papers on Miller, Professor John Finnis delivered the Sir Thomas More Lecture at Lincoln’s Inn on ‘Brexit and the Balance of Our Constitution’, on 1 December 2016. The lecture provided powerful...

John Finnis: Two Too Many?

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. A pdf version of this post can be found here. These brief marginal comments on Dame Elisabeth Laing’s interesting, important, and enviably readable “shop floor” reflections in her...

Jason Varuhas: Judicial Capture of Political Accountability

In a Policy Exchange report released today I examine the increasing capture of political accountability mechanisms by courts. Institutions such as the Parliamentary Ombudsman are intended to operate in the political sphere, securing government accountability through...

Judging the Public Interest: The rule of law vs. the rule of courts

Download report The judiciary is guilty of overreaching its constitutional remit by overruling Ministers’ decisions whether to release material not deemed to be in the public interest. In Judging the Public Interest, Prof Richard Ekins (University of Oxford) and Prof...

John Finnis – Judicial Power: Past, Present and Future

Below is the text of the speech delivered by Professor John Finnis FBA at the relaunch of Policy Exchange’s Judicial Power Project, with an introduction from Lord Chancellor Rt Hon Michael Gove MP and a Vote of Thanks from Rt Hon Lord Justice Elias, himself a...

Brexit and Judicial Power

John Finnis: Brexit and the Balance of Our Constitution

Following on from his three Judicial Power Project papers on Miller, Professor John Finnis delivered the Sir Thomas More Lecture at Lincoln’s Inn on ‘Brexit and the Balance of Our Constitution’, on 1 December 2016. The lecture provided powerful...

John Finnis: Terminating Treaty-based UK Rights: A Supplementary Note

This post is excerpted from a second short paper published today, available here: Download paper In a Judicial Power Project paper of 26 October, Terminating Treaty-based UK Rights, I argued that UK law and constitutional practice about double tax treaties provides a...

John Finnis: Terminating Treaty-based UK Rights

This post is excerpted from a short paper published today, available here: Download paper Oral argument in the Brexit Case in the Administrative Court last week left an easy case looking a bit difficult.  It allowed Lord Pannick QC, for the lead claimant, to reiterate...

Rights after Brexit: Submission to the JCHR

Download pdf Submission to the Joint Committee on Human Rights 10 October 2016 Gunnar Beck, 1 Essex Court, former advisor to the European Scrutiny Committee of the House of Commons Dominic Burbidge, Research Fellow, Judicial Power Project Richard Ekins, Associate...

Brexit and Judicial Power

Professor Richard Ekins publishes a new Judical Power Project report on Brexit’s wide implications for the future of judicial power in our constitution. Read the report...

ALBA Papers on Judicial Activism

Richard Ekins: The Dynamics of Judicial Power

Judicial power in the new UK constitution is on the rise.  This is hardly a remarkable claim: Lord Neuberger and Lady Hale, for example, each take the expansion of judicial power to be an undeniable feature of the change over time in our governing arrangements.  In a...

Maya Lester: The “Rogue” European Court in the Campaign for Brexit

In the third part of our series on Debating Judicial Power: Papers from the ALBA Summer Conference, Maya Lester QC from Brick Court Chambers writes on ‘The “Rogue” European Court in the Campaign for Brexit’. With debate about judicial activism playing a...

Christopher Forsyth: Who is the ultimate guardian of the constitution?

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. A pdf version of this post can be found here. 1. Sir John Laws writes, whether on or off the bench, with brilliance and brio. He presents an apparently utterly persuasive account...

Sir John Laws: Judicial Activism

Download John Laws paper Christopher Forsyth reply In the second part of our series on Debating Judicial Power: Papers from the ALBA Summer Conference, Sir John Laws, who served from 1999-2016 as a Lord Justice of Appeal, shares his thoughts on “Judicial Activism”,...

John Finnis: Two Too Many?

Part of our series on “Debating Judicial Power: Papers from the ALBA Summer Conference”. A pdf version of this post can be found here. These brief marginal comments on Dame Elisabeth Laing’s interesting, important, and enviably readable “shop floor” reflections in her...

Elisabeth Laing: Two Cheers for Judicial Activism

Download Elisabeth Laing paper John Finnis reply Today we launch this series with a paper by High Court judge Dame Elisabeth Laing entitled ‘Two Cheers for Judicial Activism’. The premise of the paper is that ‘there is a thing, which for want of a better label, we can...

‘Lawfare’ and Judicial Power